Six months after prominent Internet activist Aaron Swartz killed himself in his Brooklyn apartment, his father endorsed new legislation designed to reform the federal law that U.S. prosecutors used to threaten Aaron with 35 years in prison. “Aaron’s Law,” which has been proposed by Sen. Ron Wyden (D-OR) and Rep. Zoe Logren (D-CA), is “good news,” Robert Swartz told TIME on Wednesday.
Robert Swartz’s comments came on the same day his son was posthumously inducted by the Internet Society, a global tech policy organization, into its Hall of Fame, and just weeks before the Massachusetts Institute of Technology is expected to release the results of an internal investigation into the university’s role in the Swartz case. Aaron Swartz was a respected computer programmer and activist who co-authored RSS, helped launch Reddit and became a crusader for Internet freedom and civil liberties. Aaron Swartz was 26 years old when he took his own life in January.
In 2011, Swartz was charged with breaking into a server cabinet at MIT and downloading four million articles from the subscription-based academic research service JSTOR. The Massachusetts U.S. Attorney’s office charged him under the Computer Fraud and Abuse Act (CFAA), a 1980s-era law originally designed to ward off attempts to break into Cold War-era government computer systems like NORAD (think WarGames), as well as financial institutions like banks. Critics say the law has been twisted by U.S. prosecutors to intimidate people with extremely harsh federal prison sentences.
“Aaron’s Law” is designed to rein in prosecutors who have used the CFAA to threaten security researchers, journalists, and activists for violating online terms of service contracts. The bill would establish that terms of service violations are not automatic breaches of the CFAA, punishable by decades in prison. Aaron’s Law would also limit the ability of prosecutors to “stack” charges on top of each other, compounding the penalties the U.S. government wields to pressure defendants into plea bargain agreements.
“This bill is good news, because it deals with the issue of criminalizing violations of terms of service,” Robert Swartz told TIME. “Terms of service violations should not be felonies.” Under the CFAA, if you give your HBO password to a friend who uses it to watch Game of Thrones, you both could be charged with felonies. Another memorable CFAA example was Hearst Corporation’s former terms of service that prohibited users under the age of 18 from accessing the publisher’s Web properties — including the website for Seventeen magazine. Even lying about your age on Facebook could theoretically expose an Internet user to felony charges.
After the Electronic Frontier Foundation, a San Francisco-based civil liberties group, pointed out the absurdity of Hearst’s terms of service, the giant publisher quickly altered its position, but the incident highlighted the disconnect between the CFAA, which was enacted in the early 1980s before Internet use was widespread, and the reality of the online world in 2013. “When the CFAA was first passed it was designed to focus on people who might hack into Defense Department or bank systems,” said Trevor Timm, an advocate at EFF specializing in digital civil liberties. “Today, millions of people probably violate terms of service — and therefore could be charged with a felony — without even knowing it.”
Sen. Wyden and Rep. Logren say that Aaron’s Law is designed to fix a crucial flaw in the CFAA that allows the government to charge Americans for violating a “non-negotiable, private agreement that is dictated by a corporation,” the lawmakers wrote in a piece for Wired. “Aaron’s Law is not just about Aaron Swartz, but rather about refocusing the law away from common computer and Internet activity and toward damaging hacks,” Wyden and Lofgren wrote. “It establishes a clear line that’s needed for the law to distinguish the difference between common online activities and harmful attacks.”
Contract law should be in the civil realm, not the criminal realm, according to Timm. Instead, the U.S. government has used the CFAA as a legal weapon in what appears to be an intensifying federal crackdown against so-called computer hackers. In another notable CFAA case, the feds used the law to prosecute Andrew Auernheimer, a well-known computer security researcher known as “Weev,” after Auernheimer and a colleague exposed a public vulnerability in AT&T‘s online systems. Auernheimer was sentenced to 41 months in prison and ordered to reimburse AT&T for $73,000 — which is how much the telecom giant spent to notify millions of users of the security vulnerability that Auernheimer exposed in the first place.
The introduction of “Aaron’s Law” comes just weeks ahead of a highly anticipated report by Hal Abelson, a respected MIT professor of electrical engineering and computer science, and a founding director of Creative Commons and the Free Software Foundation. After Swartz’s death, MIT president L. Rafael Reif appointed Abelson to lead an investigation into MIT’s actions leading up to the suicide. A MIT spokesperson told TIME that Abelson’s report will be released “this summer,” but declined to provide more details.
Swartz’s father Robert, who ironically is a consultant to the MIT Media Lab, is critical of the way the institution conducted itself during his son’s case. “MIT broke a number of statutes, including violating Aaron’s Fourth Amendment rights,” Robert Swartz told TIME. MIT has maintained that it was neutral during the federal government’s investigation, but Robert Swartz disputes that claim. “MIT wasn’t neutral. They supported the government, when they should have been supporting Aaron.”
On Wednesday, the Internet Society posthumously inducted Aaron Swartz into its Internet Hall of Fame. “As some of the world’s leading thinkers, these individuals have pushed the boundaries of technological and social innovation to connect the world and make it a better place,” Internet Society CEO Lynn St. Amour said in a statement. “Whether they were instrumental in the Internet’s early design, expanding its global reach, or creating new innovations, we all benefit today from their dedication and foresight.”
Robert Swartz says that this honor, along with other accolades that Aaron received after his death, are more accurate reflections of his son’s character than the Justice Department’s portrayal of a dangerous, felonious cyber-criminal. In March, Aaron Swartz was posthumously awarded the American Library Association’s James Madison Award, which honors people who have “championed, protected and promoted public access to government information and the public’s right to know at the national level.”
This is the real Aaron, his father said. Aaron Swartz believed deeply that academic research — especially research funded by U.S. taxpayers — should be available to the public. “The government tried to show that Aaron was a criminal, but this and other awards make clear that he wasn’t,” Robert Swartz said. “On the contrary, Aaron made great contributions to society. The government and MIT should recognize that.”